People v. Colon
| Decision Date | 26 May 1988 |
| Docket Number | JP-12 |
| Citation | 530 N.Y.S.2d 736,139 Misc.2d 1053 |
| Parties | The PEOPLE of the State of New York, v. Nereida COLON, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (Frank Ortiz, of counsel), New York City, for the People.
Bernard H. Bier, New York City, for defendant.
After a bench trial conducted before me on April 20, 1987, defendant Nereida Colon was convicted of possessing a knife with intent to use it unlawfully against another, in violation of Penal Law § 265.01(2). The proof at trial established that Ms. Colon tried to stab an unidentified male by "lunging" at him repeatedly with a four inch knife, which weapon was recovered from defendant at the time of her arrest.
By motion dated July 7, 1987, defendant moved to "strike" all testimony concerning her use of the knife against the unknown male and petitioned this court for an order dismissing the criminal possession of a weapon charge (Defendant's Motion to Dismiss at 1). Defendant claimed that she was entitled to the requested relief, because the People had filed a Bill of Particulars effectively limiting the proof at trial to evidence that she had pointed a knife unlawfully at a police officer; accordingly, defendant argued, she could not be convicted of violating Penal Law § 265.01(2) on the basis of evidence showing that she had, instead, wielded the knife at another individual.
For reasons that were enunciated on the record on October 15, 1987, this court treated defendant's application as a motion to set aside the verdict (CPL § 330.30) and granted the relief sought. Because this case raises issues respecting the extent to which a Bill of Particulars confines the People to proof of the facts set forth therein, the rationale for the court's ruling is elaborated below.
Defendant was arrested on December 27, 1986 and charged with two counts of menacing (PL § 120.15) and one count of criminal possession of a weapon fourth degree (PL § 265.01). The accusatory instrument on which defendant was arraigned on January 16, 1987, in response to a desk appearance ticket issued at the time of her arrest, provided in pertinent part:
Deponent states that defendant possessed a dangerous instrument with intent to use the same unlawfully against another and, by physical menace, intentionally placed and attempted to place another person in fear of imminent serious physical injury in that deponent observed the defendant holding a knife, point said knife at another person, and then point said knife at deponent after deponent, a police officer, had told defendant to drop said knife.
Both counts of menacing were dismissed by the arraigning judge--apparently because the Assistant District Attorney had no information as to the whereabouts of the civilian complainant--leaving the criminal possession of a weapon fourth degree (PL § 265.01) count as the sole remaining charge in the information. As defendant's attorney had appeared for arraignment purposes only, the court directed that new counsel be appointed by the Appellate Division for the adjourned date.
Thereafter, defendant's new counsel moved for a Bill of Particulars, requesting, inter alia, that the People set forth "exact manner in which Defendant indicated an intent to use said knife unlawfully as stated in the complaint" (Defendant's Omnibus Motion at 1). The People's Affirmation in Opposition to Defendant's Omnibus Motion specified in response to this demand: "The defendant pointed the knife towards the police officer" (People's Affirmation at 2). Upon the filing of the People's response, the matter was put over for a bench trial.
During the course of his opening statement, the Assistant District Attorney declared that the evidence at trial would show that "Police Officer Beverly Williams observed the defendant coming out of a fast food restaurant waving a knife at an unidentified person ... and then subsequently turned around after the police officer identified herself and waved the knife at the police officer" (Minutes of Trial at 3). Counsel promptly objected to any mention of defendant's use of the knife against the unidentified male, citing the People's explicit representation, in response to item number 6 of defendant's request for a Bill of Particulars, that defendant's alleged criminal conduct involved the unlawful use of the weapon against a police officer. Challenging the Assistant District Attorney's assertion that the complaint itself put defendant on notice that she was also charged with waving the knife at an unapprehended individual, counsel emphasized that
the Bill of Particulars has a purpose, your honor, and I was mindful of what appeared in the complaint when I made that specific demand, your Honor, and counsel answered specifically and we are only on the issue of intent. There is no issue as far as possession of a knife in this particular case (T. 6).
This court declined to "preclude the People's testimony with respect to everything that the police officer saw", concluding that because the face of the complaint plainly alleged that "defendant held a knife and pointed it at someone else and then pointed it at the police officer" (T. 7), defendant was sufficiently informed of the conduct she was called upon to defend to prepare adequately for trial.
The People's sole witness was Transit Police Officer Beverly Williams, who testified that at approximately 11 p.m. on December 27, 1986, she was assigned to a post at Broadway and 157th Street. As Officer Williams emerged from the subway station at that location, she observed defendant Nereida Colon "lunging" repeatedly at an unidentified man with a knife "trying to stab him". Defendant was approximately five feet from the man, described as a "male Hispanic, approximately 26-27, black hair, sneakers, jeans", who was facing her and attempting to back away down the street as she jabbed at him with the four inch knife. Officer Williams, who was 35 feet away from defendant and the male when she first noticed them together on the sidewalk, immediately approached with her gun drawn and instructed Ms. Colon to "put down the knife" (T. 12). Defendant did not comply with this directive. Instead, she turned towards the police officer--still holding the knife extended at arm's length--then proceeded away from the officer for approximately 25 feet and turned the corner. Officer Williams followed and ultimately recovered the knife from the pavement where she saw defendant drop it.
Officer Williams did not claim that defendant had made any motions towards her with the knife. Rather, according to Officer Williams,
realizing that she was now talking to a police officer still refused to drop the knife. She was facing and she didn't know what to do when I informed her to drop the knife she just held it on me now at this point ... (T. 36).
The officer acknowledged that she made no effort to question the male individual seen with defendant, who had disappeared down the street while the officer was attempting to retrieve defendant's weapon.
At the conclusion of the People's case, defense counsel moved for a trial order of dismissal, contending that the People had failed to establish a prima facie case that defendant possessed the knife unlawfully. The court agreed with counsel that the evidence did not establish a prima facie case insofar as unlawful intent to use the weapon against the police officer was concerned; however, the court concluded that the People had met their burden of going forward with respect to proof showing that defendant possessed a knife with intent to use it unlawfully against the unidentified male.
Nereida Colon then took the stand and testified that she entered a "chicken fast food place" on the evening of December 27, 1986, but decided not to make a purchase after she discovered two people in line ahead of her. According to defendant, as she was on her way out of the store,
a fellow opened the door and as soon as he opened the door I was just ready to go out and he didn't allow me to go out so I moved back. As I moved back he picked up his hands and moved back about three steps (T. 46).
Concluding from this equivocal gesture--which was unaccompanied by any verbal expression--that this individual "was ready to assault" her, defendant pulled out her knife and held it out at him. The man, who was a stranger to Ms. Colon, immediately ran out of the store and disappeared down the street. Defendant, who was still grasping the knife, stepped out of the store herself, encountering the police officer less than a foot away "right by the door". Defendant denied that she had chased the stranger out of the store while brandishing a knife; rather, according to Ms. Colon, the knife remained in her hand simply because she had not had time to put it away before she happened upon the police officer. After hearing this evidence, the court convicted defendant of criminal possession of a weapon fourth degree and adjourned the case for preparation of a pre-sentence report and for post-trial motions.
Not surprisingly, in their respective post-trial motion papers, defense counsel and his adversary assess the significance of the Bill of Particulars at issue here in diametrically divergent ways. Counsel argues that he made a formal written motion for a Bill of Particulars, purposefully requesting that the People identify the "exact manner" in which defendant was alleged to have wielded the knife unlawfully "as stated in the complaint." When the People replied, in response to this specific demand, that "the defendant pointed the knife towards the police officer", counsel interpreted this assertion as "evincan intention to limit the evidence to proof of defendant's guilt as to the police officer only." In the absence of any subsequent motion by the Assistant District Attorney for leave to amend the Bill of Particulars (see CPL § 200.95)...
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...and/or amplify matters in the pleadings that are necessary to enable the accused to mount a defense" (People v. Colon, 139 Misc.2d 1053, 1058, 530 N.Y.S.2d 736 [Sup.Ct., N.Y. Cty.1988] [citations and internal quotation marks omitted] ). In short, a bill of particulars clarifies the charges ......
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